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EXHIBIT 10.3
AGREEMENT OF PURCHASE AND SALE
IRT PROPERTY COMPANY, hereinafter referred to as "Purchaser," agrees to
purchase, and RREEF MidAMERICA/EAST-IV, INC., a Delaware corporation,
hereinafter referred to as "Seller," agrees to sell, that certain improved real
property, hereinafter referred to as the "Property," situated in the City and
County of West Palm Beach, State of Florida, legally described on Exhibit A
attached hereto and made a part hereof, commonly known as Greenwood Shopping
Center, consisting of a shopping center containing approximately 134,132
rentable square feet, on land aggregating approximately 13.12 acres, together
with all rights, privileges, easements and appurtenances thereto, including any
and all mineral rights, development rights, air rights, and the like; all
personal property owned by the Seller and located on or used in conjunction with
the Property; any and all intangible personal property owned and used in the
operation of the Property, including the right to use the name of the property
(but not the name "RREEF"), to the extent assignable; contract rights, lease
rights, all licenses, permits and other written authorizations necessary for the
use, operation and ownership of the Property, records, security deposits and
prepaid rent, if any, and the benefit of any guaranties of the leases.
1. Purchase Price. The purchase price for the Property ("Purchase
Price") is Thirteen Million Dollars ($13,000,000.00), payable by wire transfer
of funds at Closing as defined in Paragraph 7.1.
2. Deposit.
2.1 Within three (3) business days after the Effective Date as
defined in Paragraph 8.21, Purchaser will deposit the amount of $150,000.00 (the
"Deposit") with Commonwealth Land Title Insurance Company ("Escrow Holder") as
xxxxxxx money to secure Purchaser's performance hereunder. The Deposit may be
invested at the direction of Purchaser with the approval of Seller. All
investment income earned from the investment of the Deposit, less investment
fees, if any, will be added to and become a part of the Deposit and will be
applied toward the Purchase Price if Closing is completed in accordance with
this Agreement; otherwise all interest shall be paid to the party entitled to
the Deposit. The escrow instructions to Escrow Holder will be in the form of
Schedule 2.1 attached hereto.
3. Review of the Property.
3.1 Upon its execution of this Agreement, Seller agrees:
subject to the provisions of Paragraph 8.17 hereof, to provide Purchaser and its
agents or consultants with access to the Property to inspect each and every part
thereof to determine its present condition and to conduct such physical and
environmental studies (including a mechanical and roof study) as it deems
appropriate.
3.2 Within three (3) business days after the Effective Date,
Seller will deliver to Purchaser, all to the extent in the possession of Seller
or its managing agent:
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3.2.1 a copy of any existing occupancy and equipment
leases, service contracts and maintenance or other contracts pertaining to the
operations of the Project other than management contracts which will not survive
Closing (as hereinafter defined), copies of all real estate tax bills for 1994,
1995, and 1996, and unaudited financial statements for the Property for the
years 1994-1996 and 1997 year to date.
3.2.2 copy of any environmental reports prepared by third
party consultants or otherwise relating to the Project since January 1, 1994.
Purchaser may review any earlier reports at Seller's management office which is
located at the Mall of the Americas, 0000-X X. Xxxxxxx Xxxxxx, Xxxxx, XX 00000,
or at Purchaser's request and cost, Seller agrees to make and send Purchaser
copies of any such earlier reports.
3.2.3 a copy of all current franchises, business or other
licenses, bonds, permits, certificates, authorizations and other evidences of
consent, approval, authorization or permission relating to or affecting the
Project of or from any person, including any governmental authority, held by
Seller or its managing agent, including any pending applications.
3.2.4 a copy of all third party warranties and guaranties,
if any, in the possession of Seller or its management company, which are in
effect with respect to the Project.
3.3 Purchaser has until the close of business on the day which
is thirty days after the Effective Date (the "Review Period"), to determine in
its sole discretion whether all matters relating to the Property are acceptable.
If Purchaser concludes that any matter relating to the Property is not
acceptable, Purchaser will so notify Seller (the "Termination Notice") prior to
the expiration of the Review Period (which notice shall contain a copy of
Purchaser's roof/structural report and other reports or studies obtained in
connection with Purchaser's due diligence). However, the foregoing will not be
construed to limit or qualify Purchaser's absolute right to terminate this
Agreement for no reason by the end of the Review Period. Upon timely delivery of
the Termination Notice, this Agreement will terminate without liability on the
part of Seller or Purchaser, other than Purchaser's indemnity contained in
Paragraph 8.17 hereof and the obligation to deliver to Seller a copy of any
environmental report obtained by Purchaser if requested by Seller within ten
(10) days after receipt of the Termination Notice, and the Deposit, less $100.00
to be paid to Seller, will be returned to Purchaser. In the event that Purchaser
does not timely so notify Seller, Purchaser will be deemed to have concluded
that all matters relating to the Property are acceptable and to have elected to
proceed with the transaction upon the terms and conditions contained herein.
3.4 Purchaser agrees that any information obtained by Purchaser
or its authorized agents in the conduct of its due diligence will be treated as
confidential pursuant to Paragraph 8.19.
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3.5 To the extent not already delivered to Purchaser, Seller
shall, within three (3) days after the Effective Date, deliver to Purchaser
copies of all the documentation set forth on Schedule 3.5 attached hereto, to
the extent in Seller's control.
4. Title and Survey. Seller shall convey good marketable and
insurable fee simple title to the Property to Purchaser, by execution and
delivery of the Deed (as hereinafter defined), free and clear of all liens and
encumbrances, subject only to the Permitted Title Exceptions, as defined herein,
the leases and any other matter of title which Purchaser shall approve or waive
in accordance with this Agreement. "Good, marketable and insurable fee simple
title" shall mean such title as is insurable by the Escrow Holder at standard
rates on its ALTA Form 1992 owner's policy without exception, except for the
leases and the Permitted Title Exceptions (the "Title Commitment"). Seller
agrees to order (and upon receipt, to promptly deliver to Purchaser) an
"as-built" survey of the Property, which shall be prepared in accordance with
the requirements set forth on Schedule 4 attached hereto (the "Survey"). Within
ten (10) business days following Purchaser's receipt of the later of the Title
Commitment and Survey, Purchaser shall notify Seller of any reasonable
objections Purchaser may have to any exception shown on the Title Commitment or
Survey. If Purchaser fails to give any notice to Seller, Purchaser shall be
deemed to have waived such right to object to any title exceptions shown on the
Title Commitment or matters shown on the Survey, and the matters shown on the
Title Commitment and disclosed on the Survey shall be the "Permitted Title
Exceptions." In the event that the legal description of the Property as
determined by the Survey differs from the legal description by which the
Property was conveyed to Seller, then, at the request of Purchaser, Seller shall
also execute and deliver at Closing a quitclaim deed in favor of Purchaser
containing the legal description as determined by the Survey. Seller shall
remove any monetary liens (except property taxes not yet due and payable),
judgments, all assessments levied and payable at the time of Closing or other
monetary encumbrances encumbering title to the Property and held by persons
claiming through or under Seller at or before Closing (collectively, "Seller
Defects"). If Seller fails to do so, Purchaser shall have the right at Closing
to satisfy any Seller Defects by withholding the required amount from the
Purchase Price and paying and discharging the Seller Defects. If Purchaser does
give Seller timely notice of objection to any title exception or matters of
survey, Seller shall then have the right, but not the obligation, except as
herein expressly provided, for a period of ten (10) days after such notice, to
cure or satisfy or undertake to cure or satisfy such objection by the Closing.
All title exceptions and matters of survey not objected to are Permitted Title
Exceptions. If such objection is not so timely cured or satisfied or undertaken
to be cured or satisfied by Seller, then Purchaser shall, within (5) days after
receipt by Purchaser of notice of Seller's election to undertake a cure or not
and as its only remedy, elect, by written notice to be delivered to Seller on or
before such fifth (5th) day, either to (a) terminate this Agreement, in which
case the Deposit, less $100.00 to be paid to Seller, shall be returned to
Purchaser by Escrow Holder, and the parties shall have no further rights or
obligations hereunder, except for those which expressly survive any such
termination, or (b) waive its objection hereunder and proceed with the
transaction pursuant to the remaining terms and conditions of this Agreement. If
Seller does so cure or satisfy, or undertake to cure or satisfy, such
objections, then this Agreement shall continue in full force and effect.
Purchaser shall have
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the right at any time prior to termination to waive any objections that it may
have made and, thereby, to preserve this Agreement in full force and effect.
Except as otherwise expressly permitted herein with respect to leasing, Seller
agrees not to further alter or encumber in any way Seller's title to the
Property after the execution hereof without Purchaser's prior written consent.
Purchaser shall have the right to object to any change in title occurring after
the effective date of the Title Commitment and prior to the Closing, and if
Seller cannot or will not cure or satisfy any such objection (or any objection
which Seller has previously undertaken to cure or satisfy) by the Closing, Buyer
may exercise the option set forth in clause (a) or (b) above. The Closing Date
shall be automatically extended to permit all time periods in this Paragraph 4
to run fully. Failure of Purchaser to elect either option (a) or option (b) when
available, shall be deemed to be an election of option (a).
5. Representations and Warranties.
5.1 Representations and Warranties of Seller. As used in this
Paragraph 5.1 and elsewhere in this Agreement, the phrase "to the knowledge of
Seller" or phrases of similar import means and is limited to the actual
knowledge of Seller's portfolio manager (Xxxxx X. Xxxxxxxx) and Seller's local
manager having ongoing management responsibility with respect to the Property
(Xx Xxxx), and not to any constructive knowledge of any of the foregoing
individuals or of Seller or any investment advisor to Seller, any entity that is
a partner in such investment advisor, or any affiliates of any thereof, or to
any officer, agent, representative, or employee of Seller or such investment
advisor, any such constituent partner, or any such affiliate. Whenever the
phrase "Seller has received no written notice" is used herein, it means that
Messrs. Xxxxxxxx and Xxxx have not received any written notice. Seller hereby
warrants and represents to Purchaser (with such representations and warranties
to be re-made as of Closing pursuant to Paragraph 7.6.10) as follows:
5.1.1 Pending Proceedings. With the exception of the
items set forth on Schedule 5.1.1, to the knowledge of Seller, Seller has
received no written notice of and Seller has no knowledge of any special
assessments, condemnation, environmental, zoning or other land use regulation
proceedings either pending or planned to be instituted with respect to the
Property or any part thereof.
5.1.2 Status of Seller and Closing Documents. Subject
to Paragraph 8.15, that this Agreement has been, and all the documents to be
delivered by Seller to Purchaser at Closing are or will be, duly authorized,
executed, and delivered by Seller, will be sufficient to convey good, marketable
and insurable title fee simple and are legal, valid, and binding oblig ations of
Seller, are enforceable in accordance with their respective terms, and do not
violate any provisions of any agreement to which Seller or the Property is
subject.
5.1.3 Non-Foreign Status. Seller is not a "foreign
person" within the meaning of Section 1445(f)(3) of the Internal Revenue Code of
1986, as amended, and that Seller
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will furnish to Purchaser, prior to Closing, an affidavit in form satisfactory
to Purchaser confirming the same.
5.1.4 Service Contracts. With the exception of
the items set forth on Schedule 5.1.4, there are no agreements or contracts
affecting the Property (including, without limitation, any management, leasing,
services or maintenance agreements) which are not terminable at will by Seller
without further liability, upon not more than 30 days' prior written notice.
5.1.5 No Default. The execution and delivery of
this Agreement, and consummation of the transaction described in this Agreement,
does not and will not constitute a default under any contract, lease, or
agreement to which Seller is a party.
5.1.6 No Suits. To Seller's knowledge, there is
no action, suit or proceeding pending or threatened against or affecting the
Property or any portion thereof, or relating to or arising out of the ownership,
management or operation of the Property, in any court or before or by any
federal, state, or municipal department, commission, board, bureau or agency or
other governmental instrumentality.
5.1.7 Environmental Condition. Each of the
following representations contained in this Paragraph 5.1.7 is wholly qualified
and limited by (a) any matters disclosed in any materials made available or
delivered to Purchaser by Seller pursuant to Paragraph 3 above or otherwise, (b)
any matters disclosed in any environmental reports or studies obtained by
Purchaser, and (c) any other matters of which Purchaser has actual knowledge.
Subject to the foregoing, Seller represents:
5.1.7.1 With the exception of items listed
on Schedule 5.1.7.1, to Seller's knowledge no releasing, generating or handling
of Hazardous Materials has occurred on the Property by Seller, and Seller does
not know of any releasing, generating or handling of Hazardous Materials on the
Property by any tenants or the incorporation of Hazardous Materials by the
tenants in any improvements on the Property during the xxxx Xxxxxx owned the
Property, except in either instance in minimal amounts customarily found in
office uses and in compliance with applicable law or as is otherwise allowed in
compliance with applicable law. For the purposes hereof, "Hazardous Material"
means any substance, chemical, waste or other material which is listed, defined
or otherwise identified as "hazardous" or "toxic" under any federal, state,
local or administrative agency ordinance or law, including, without limitation,
the Comprehensive Environmental Response, Compensation and Liability Act, 42
U.S.C. xx.xx. 9601 et seq. and the Resource Conservation and Recovery Act, 42
U.S.C. xx.xx. 6901 et seq., or any regulation, order, rule or requirement
adopted hereunder, as well as any formaldehyde, urea, polychlorinated biphenyls,
petroleum, petroleum product or by-product, crude oil, natural gas, natural gas
liquids, liquefied natural gas, or synthetic gas usable for fuel or mixture
thereof, radon, asbestos, and "source," "special nuclear" and "by-product"
material as defined in the Atomic Energy Act of 1985, 42 U.S.C. xx.xx. 3011 et
seq.
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5.1.7.2 With the exception of items listed
on Schedule 5.1.7.2, Seller has not received any summons, citation, directive,
letter or other communication, written or oral, from the United States
Environmental Protection Agency or the Florida Department of Environmental
Protection with respect to the Property.
5.1.8 Construction Contracts/Tenants Improvements.
Except as specified in Schedule 5.1.8, Seller has entered into no outstanding
written or oral contracts with regard to construction of improvements on the
Property, and has no obligations with respect to tenant improvements, which have
not been fully paid for or which will not be fully paid for as of Closing.
5.1.9 Options. Seller has granted no options or
rights of first refusal to acquire any interest in the Property not set forth in
the tenant leases delivered to Purchaser or in documents of record disclosed in
the Title Commitment.
5.1.10 Rent Roll. The information set forth on the
rent roll attached hereto as Schedule 5.1.10 is true and accurate in all
material respects.
5.1.11 Tenant Rights. There are no termination,
extension, cancellation, or expansion rights under the leases except as
contained in the leases.
5.1.12 Leasing Commissions. All leasing
commissions due and payable as of the date hereof by Landlord have been paid or
will have been paid on or before Closing. Except as set forth in the leases,
Seller has no knowledge of leasing commissions with respect to leases in effect
as of the Execution Date which may become due after Closing by reason of post-
Closing actions or occurrences.
5.1.13 Bankruptcy. Seller is not party to any
voluntary or involuntary proceedings in bankruptcy, reorganization or similar
proceedings under the Federal bankruptcy laws or under state laws relating to
the protection of debtors, or subject to any general assignment for the benefit
of the creditors, and, to Seller's knowledge, no such action has been
threatened.
5.1.14 Undisclosed Agreements. To Seller's
knowledge and other than as expressly set forth in this Agreement or otherwise
disclosed in writing to Buyer pursuant to this Agreement, there are no
undisclosed agreements affecting the Property.
5.1.15 No Employee Agreements or Contracts. No
agreements or employment contracts exist which would prevent Seller from
dismissing, on one week's notice without payment of severance, sick leave,
vacation pay or bonus, any employee now employed to work on or with the
Property. Seller has not, and will not, represent to its employees, that the
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Purchaser or its independent contract manager, will hire Seller's employees on
or after the Closing Date.
5.1.16 CCR's. Seller has received no notice of any
uncured default under any restriction burdening the Property.
5.2 Representations and Warranties of Purchaser.
Purchaser hereby represents and warrants to Seller that (i) this Agreement has
been, and all the documents to be delivered by Purchaser to Seller will be, duly
authorized, executed, and are or will be legal, valid, and binding obligations
of Purchaser, are or will be enforceable in accordance with their respective
terms, and do not and will not at Closing violate any provisions of any
agreement to which Purchaser is subject and (ii) Purchaser is a publicly traded
Real Estate Investment Trust.
5.3 Continuation. The continued accuracy in all material
respects of the aforesaid representations and warranties is a condition
precedent to the parties' obligation to close. If the warranty and
representation of Purchaser in clause (ii) of Paragraph 5.2 is not correct when
made, or when remade at Closing, or if such warranty and representation is
inaccurate when made or becomes inaccurate in any material respect on or prior
to Closing, then, unless Seller is satisfied in its sole discretion that the
transaction contemplated hereby will not constitute a sale to a
"party-in-interest" within the meaning of Section 3(14) of the Employee
Retirement Security Act of 1974 as amended, with respect to any investor in
Seller, this Agreement shall terminate, the Deposit shall be returned to
Purchaser, less $100.00 to be paid to Seller, and neither party will have any
further rights or obligations hereunder except as provided in Paragraph 8.17. If
any of Seller's representations and warranties is not correct in all material
respects at the time the same is made, or when remade at Closing, or if such
warranty or representation is inaccurate when made or becomes inaccurate in any
material respect on or prior to Closing, Purchaser may, upon being notified of
such occurrence either (a) terminate this Agreement, in which event the Deposit
will be returned to Purchaser, and neither party will have any further rights or
obligations hereunder except as provided in Paragraph 8.17, or (b) waive such
matter and proceed to Closing, by notice to Seller given within ten (10) days
after Purchaser receives notice from Seller, or otherwise obtains actual
knowledge, of such occurrence, but in no event later than Closing. If Purchaser
fails to give any notice within the required time period, Purchaser will be
deemed to have elected to waive such matter and proceed to Closing. However, and
in any event, if Purchaser closes this transaction after being notified or
otherwise having actual knowledge of the breach or inaccuracy of any
representation or warranty hereunder, whether or not knowing and intentional and
whether or not occurring by reason of, Seller's default, Purchaser will be
conclusively deemed to have waived such matter and will be barred from asserting
any claim with respect thereto. Subject to the preceding sentence and to the
time limitation of Paragraph 8.12, nothing herein prohibits Purchaser from
seeking actual (but not special, consequential, exemplary or punitive, all of
which are hereby excluded) damages proximately caused by the breach, discovered
after Closing, of any of Seller's representations and warranties contained
herein.
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5.4 Condition of Property. EXCEPT AS EXPRESSLY SET FORTH IN
THIS AGREEMENT, (I) SELLER HAS NOT MADE AND DOES NOT HEREBY MAKE ANY
REPRESENTATIONS, WARRANTIES OR OTHER STATEMENTS AS TO THE CONDITION OF THE
PROPERTY AND (II) PURCHASER ACKNOWLEDGES THAT AT CLOSING IT IS PURCHASING THE
PROPERTY ON AN "AS IS, WHERE IS" BASIS AND WITHOUT RELYING ON ANY
REPRESENTATIONS AND WARRANTIES OF ANY KIND WHATSOEVER, EXPRESS OR IMPLIED, FROM
SELLER, ITS AGENTS OR BROKERS AS TO ANY MATTERS CONCERNING THE PROPERTY. EXCEPT
AS EXPRESSLY SET FORTH IN THIS AGREEMENT, NO REPRESENTATIONS OR WARRANTIES HAVE
BEEN MADE OR ARE MADE AND NO RESPONSIBILITY HAS BEEN OR IS ASSUMED BY SELLER OR
BY ANY PARTNER, OFFICER, PERSON, FIRM, AGENT OR REPRESENTATIVE ACTING OR
PURPORTING TO ACT ON BEHALF OF SELLER AS TO THE CONDITION OR REPAIR OF THE
PROPERTY OR THE VALUE, EXPENSE OF OPERATION, OR INCOME POTENTIAL THEREOF OR AS
TO ANY OTHER FACT OR CONDITION WHICH HAS OR MIGHT AFFECT THE PROPERTY OR THE
CONDITION, REPAIR, VALUE, EXPENSE OF OPERATION OR INCOME POTENTIAL OF THE
PROPERTY OR ANY PORTION THEREOF. THE PARTIES AGREE THAT ALL UNDERSTANDINGS AND
AGREEMENTS HERETOFORE MADE BETWEEN THEM OR THEIR RESPECTIVE AGENTS OR
REPRESENTATIVES ARE MERGED IN THIS AGREEMENT AND THE SCHEDULES AND EXHIBITS
HERETO ANNEXED, WHICH ALONE FULLY AND COMPLETELY EXPRESS THEIR AGREEMENT, AND
THAT THIS AGREEMENT HAS BEEN ENTERED INTO AFTER FULL INVESTIGATION, OR WITH THE
PARTIES SATISFIED WITH THE OPPORTUNITY AFFORDED FOR INVESTIGATION, NEITHER PARTY
RELYING UPON ANY STATEMENT OR REPRESENTATION BY THE OTHER UNLESS SUCH STATEMENT
OR REPRESENTATION IS SPECIFICALLY EMBODIED IN THIS AGREEMENT OR THE EXHIBITS
ANNEXED HERETO. PURCHASER ACKNOWLEDGES THAT SELLER HAS REQUESTED PURCHASER TO
INSPECT FULLY THE PROPERTY AND INVESTIGATE ALL MATTERS RELEVANT THERETO AND TO
RELY SOLELY UPON THE RESULTS OF PURCHASER'S OWN INSPECTIONS OR OTHER INFORMATION
OBTAINED OR OTHERWISE AVAILABLE TO PURCHASER, RATHER THAN ANY INFORMATION THAT
MAY HAVE BEEN PROVIDED BY SELLER TO PURCHASER. NOTHING CONTAINED IN THIS
PARAGRAPH IS INTENDED TO AFFECT PURCHASER'S RIGHTS SPECIFICALLY SET FORTH
ELSEWHERE IN THIS AGREEMENT.
6. Closing Conditions. Purchaser's obligation to proceed to
Closing is conditioned upon Seller's performance of the following obligations
and satisfaction of the following conditions, in addition to all of its other
obligations and conditions contained in this Agreement, provided that Purchaser
may in its sole discretion elect to waive failure by Seller to perform any
particular obligation.
6.1 The Escrow Holder is prepared to issue a policy of title
insurance insuring good, marketable and fee simple title in the Property to
Purchaser, subject only to exceptions approved pursuant to Paragraph 4.
6.2 Seller has delivered to Purchaser not later than three
(3) days prior to Closing, estoppel letters prepared by Seller and addressed to
Purchaser, from all of the Major Tenants (defined as NationsBank and all tenants
occupying at least 10,000 square feet) and from at least 75% of the tenants of
the Property (excluding the Major Tenants), measured by square footage (the
remaining tenants, for which Seller is not required to provide tenant executed
estoppel certificates, are referred to as the "Unconfirmed Tenants"). All
estoppel letters must be dated not more than thirty-five (35) days prior to the
date of Closing. The estoppel letters from
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the Major Tenants may be in such Major Tenants' customary form. All other
estoppel letters must be substantially in the form of Schedule 6.2 or in a form
otherwise reasonably acceptable to Purchaser.
6.2.1 Seller will deliver the Required Estoppel Form
with respect to Unconfirmed Tenants (the "Substituted Estoppel Certificates"),
warranted and represented by Seller. Seller's representations and warranties in
the Substituted Estoppel Certificates will survive the Closing for a period of
twelve (12) months, the limitations of Paragraph 8.12 herein to the contrary
notwithstanding. In the event that, following the Closing Date as defined in
Paragraph 7.1, Seller obtains a tenant executed estoppel letter with respect to
any lease for which Seller delivered a Substituted Estoppel Certificate pursuant
to this Paragraph or Paragraph 6.2.2, Seller will deliver such tenant executed
estoppel letter to Purchaser and, upon such delivery, Seller will be
automatically released from any liability or obligation under the Substituted
Estoppel Certificate previously delivered by Seller with respect to such lease
to the extent the tenant executed estoppel certificate from an Unconfirmed
Tenant confirms information contained on the Substituted Estoppel Certificate.
6.2.2 If Seller is unable to obtain and deliver
sufficient tenant estoppel certificates as required under Paragraph 6.2, or if
the letters received under Paragraph 6.2 or substituted estoppels permitted
under Paragraph 6.2.1 contain information or omissions unacceptable to Purchaser
in its reasonable discretion, then Seller will not be in default by reason
thereof, but Purchaser may, by notice given to Seller before the Closing, elect
(a) to waive said conditions and proceed with the Closing, in which event Seller
shall provide a Substituted Estoppel Certificate for all tenants for whom Seller
did not furnish tenant executed estoppel certificates, or (b) to terminate this
Agreement and receive a refund of the Deposit. If Purchaser elects to terminate
this Agreement. neither party will have any further rights or obligations
hereunder except as provided in Paragraph 8.17.
6.3 All of Seller's representations and warranties made
pursuant to Paragraph 5.1 remain materially true and correct.
6.4 Seller has delivered all of the documents and other
items required pursuant to Paragraph 7.6 and has performed all other covenants,
undertakings and obligations required by this Agreement, to be performed or
complied with by Seller at or prior to Closing.
7. Closing.
7.1 Closing of Sale. The purchase and sale contemplated
herein shall close (herein referred to as the "Closing") at the office of the
Escrow Holder, or as otherwise mutually agreed, not later than the date (the
"Closing Date") which is fifteen (15) days after the expiration of the Review
Period, time being of the essence. At Closing, Seller will deliver to Purchaser
a Special Warranty Deed ("Deed") in the form of Schedule 7.6.1 and other closing
documents required hereunder and Purchaser will cause payment of the Purchase
Price to be made to Seller
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by wire transfer. The sale (payment of the Purchase Price and delivery of the
Deed) may, at Purchaser's option to be exercised by notice to Seller at least
five (5) days prior to the Closing Date, be closed through escrow with the
Escrow Holder in accordance with the general provisions of the usual form of
escrow agreement used in similar transactions by such Escrow Holder special
provisions inserted as may be required to conform with this Agreement.
7.2 Prorations; Adjustments. The parties will prorate taxes,
rental (including, without limitation, percentage rental, if any), and other
income, and operating or other expenses of the Property as of 12:01 a.m. on the
date after Closing (i.e., Seller is entitled to the income and responsible for
the expenses of the day of Closing). Any taxes or other expenses of the Property
for the period prior to Closing which are payable by the Major Tenants of the
Property, which are not collected or not delinquent as of the Closing, will
reduce the credit to Purchaser for such items (i.e., no credit for pass-through
items). Seller shall credit Purchaser with all amounts collected from the
tenants on account of 1997 common area maintenance expenses in excess of amounts
paid by Seller on account of such expenses. To the extent that the taxes to be
prorated are not known with certainty, such proration will be based upon the
most recent tax xxxx or county estimate, to be re-prorated upon issuance of
final bills. Any percentage rental for the rental periods including Closing
shall be prorated upon receipt, based upon the tenant's sales for the portions
of such periods allocable to Seller and Purchaser, respectively, either as
provided in the applicable lease or, if not, based on the calendar year. Seller
also agrees to give Purchaser a credit against the Purchase Price for all
security deposits for which Seller is liable pursuant to the leases and the
estoppel certificates and all interest due thereon and shall assign to Purchaser
any other tenant deposits held by Seller. For a period of one year following
Closing, Purchaser will pay amounts received by it from tenants constituting
base rent, capital reimbursements or other income due from tenants and
attributable to Seller's period of ownership, but not collected as of the date
of Closing, to Seller promptly upon receipt; provided that amounts received from
tenants by Purchaser will be first applied to charges due Purchaser, and the
balance will be applied to payments due to Seller. Seller agrees to credit
Purchaser with the amount, if any, of leasing commissions earned with respect to
leases in existence on the Effective Date but not due or payable until after
Closing. In addition, Seller agrees to credit Purchaser with the amount of
minimum rent forgiveness to which Lady of America Fitness Center and C.R. Chicks
are due under their respective leases from the day after Closing to August 31,
1997 and October 31, 1997, respectively, prorated for the month in which the
Closing occurs. Subject to the provisions of Section 5 and of paragraph 6.2
herein, on or after the Closing, Seller will have no further obligations with
respect to any leases or other agreements affecting the Property, including,
without limitation, tenant improvement work, leasing commissions, and free rent,
Purchaser will deliver the Purchase Price to Seller in good funds by 2:00 p.m.
Chicago time on the day of Closing. If Seller does not receive the funds by such
time, prorations will be made as of the next business day.
7.2.1 Seller and Purchaser hereby agree to use their
reasonable efforts to calculate prorations (including real estate tax
prorations) so as to permit settlement thereof on the Closing Date, provided,
however, that if any of such prorations cannot be calculated accurately
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on the Closing Date, then the same will be calculated as soon as reasonably
practicable after the Closing Date, but in no event later than the later to
occur of (i) thirty (30) days after Seller receives its final audited cost
certification for the year in which Closing occurs, or (ii) March 31 of the year
following the year in which Closing occurs, and either party owing the other
party a sum of money based on such subsequent proration(s) shall promptly pay
said sum to the other party, together with interest thereon at the rate of two
percent (2%) per annum over the "prime rate" (as announced from time to time in
the Wall Street Journal) from the Closing Date to the date of payment if payment
is not made within thirty (30) days after delivery of a xxxx therefor together
with reasonable back-up documentation. This obligation of the parties will
survive Closing.
7.3 Proration of Service Charges. To the extent Seller, as
opposed to tenants, is responsible for payment of utility charges, Seller will
attempt to have utility meters read as of the Closing Date. To the extent that
this is not possible and to the extent that any other obligation for continuing
services is incurred, and statements are rendered for such services covering
periods both before and after the Closing Date, the amount will be adjusted
between the parties as of the Closing Date on a per-diem basis. Seller will
forward any such statements which it receives to Purchaser together with a check
payable to the utility in the amount of Seller's share of such statement, and
Purchaser will pay the same in full. Seller will remit to Purchaser its
proportionate share immediately upon demand.
7.4 Closing Costs. Purchaser agrees to pay (i) 1/2 the
Escrow Holder's escrow and/or closing fees (including any payment to the closing
officer of the Escrow Holder as may be the local custom at the Closing), (ii)
the cost of the Title Commitment and policy and the cost of any endorsements to
the title policy required by Purchaser, including extended coverage, (iii) all
recording fees with respect to the Deed, and (iv) all costs of Purchaser's
physical inspections of the Property (environmental, engineering) and other due
diligence activities. Seller agrees to pay (i) 1/2 the Escrow Holder's escrow
and/or closing fees (including any payment to the closing officer of the Escrow
Holder as may be the local custom at the closing), (ii) the cost of the Survey,
(iii) all recording fees with respect to clearing Seller's title, and (iv) all
conveyance taxes and/or documentary stamp taxes payable in connection with the
transaction contemplated hereby. Except as otherwise provided in Paragraph 8.9,
each party is responsible for its own attorneys' and other professional fees.
All other closing costs shall be allocated in accordance with the prevailing
local custom.
7.5 Possession. Subject to the rights of tenants pursuant to
leases of the Property delivered to Purchaser, Seller will deliver possession of
the Property and of any conveyed personal property to the Purchaser on the date
of Closing and Seller will thereupon deliver to Purchaser the originals of all
leases for tenants of the Property, all guaranties with respect to the leases,
all correspondence with tenants, tenant/lease files, operating statements, plans
and specifications, supplies and advertising materials, booklets, keys, and
other items used in connection with operation of the Property.
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7.6 Seller's Closing Documents. As part of the Closing,
Seller will deliver to Purchaser:
7.6.1 the Deed, in the form of Schedule 7.6.1
7.6.2 an affidavit in customary form that Seller is
not a "foreign person" within the meaning of Section 1445(e) of the Internal
Revenue Code of 1986, in the form of Schedule 7.6.2;
7.6.3 such affidavits as are customarily required by
Escrow Holder in connection with issuance of the owner's title insurance policy,
including a mechanics' lien and judgment affidavit;
7.6.4 executed counterpart of an assignment of leases
in the form of Schedule 7.6.4 ("Lease Assignment");
7.6.5 executed counterpart of an assignment of
contracts and warranties in the form of Schedule 7.6.5 ("Contracts Assignment");
7.6.6 executed counterpart of an assignment of
intangibles in the form of Schedule 7.6.6 ("Intangibles Assignment");
7.6.7 letters, in form to be supplied by Purchaser,
to the tenants at the Property, instructing the tenants to pay rent to Purchaser
and to recognize Purchaser as landlord under their leases;
7.6.8 a xxxx of sale conveying all personal property
of Seller, if any, located at the Property and used in connection with the
maintenance or operation thereof, in the form of Schedule 7.6.8;
7.6.9 a rent roll, certified to be materially true
and correct as of the Closing Date, in the form previously delivered to
Purchaser;
7.6.10 a "bring down certificate" stating that
Seller's representations and warranties are true and correct as of the Closing
Date, in the form of Schedule 7.6.10;
7.6.11 estoppel certificates as required by Paragraph
6.2 herein;
7.6.12 evidence of Seller's authority to enter into
and consummate all of the transactions contemplated in this Agreement
satisfactory to the Escrow Holder and to the Purchaser;
7.6.13 a schedule certified by the Seller of the
rents due from Tenants which are in arrears as of the Closing Date;
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7.6.14 an estoppel certificate of no default from the
beneficiary of any restriction burdening the Property; and
7.6.15 all other documents, instruments or writings
which may be reasonably required to consummate the transactions contemplated
herein.
7.7 Purchaser's Closing Documents. As part of the Closing,
Purchaser will deliver to Seller:
7.7.1 good federal funds in an amount equal to the
Purchase Price, less the Deposit and interest thereon and plus or minus
prorations as provided herein;
7.7.2 such affidavits as are customarily required by
Escrow Holder in connection with issuance of the owner's title insurance policy;
7.7.3 executed counterpart of the Lease Assignment;
7.7.4 executed counterpart of the Contracts
Assignment;
7.7.5 executed counterpart of the Intangibles
Assignment;
7.7.6 all other documents, instruments or writings
which may be reasonably required to consummate the transactions contemplated
herein.
7.8 Joint Deliveries. At the Closing, Seller and Purchaser
will execute and deliver to each other the following documents in proper form:
7.8.1 Closing Statement;
7.8.2 City, county and state transfer tax
declarations or similar instruments; and
7.8.3 All other documents, instruments or writings
which may be reasonably required to consummate the transactions contemplated
herein.
8. Miscellaneous.
8.1 Modifications. This Agreement can be amended only in
writing and supersedes any and all agreements between the parties hereto
regarding the Property which are prior in time to this Agreement.
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8.2 Casualty and Condemnation. (A) Seller shall assume the
risk of loss or damage to the Property prior to the Closing and agrees to keep
its customary replacement cost insurance covering the Property in effect until
the Closing. If, between the date of execution hereof by Purchaser and the
Closing, the improvements on the Property are destroyed or damaged to the extent
that repairs cost in excess of $200,000.00, or if condemnation proceedings are
commenced against the Property, Purchaser may terminate this Agreement. If
Purchaser elects to accept the Property in its then condition, Seller will pay
or assign to Purchase at Closing all proceeds of insurance (plus the applicable
deductible) or condemnation awards payable to Seller by reason of such damage or
condemnation. In the event of any other damage to the Property not giving
Purchaser the right to terminate as aforesaid ("Other Damage"), Purchaser agrees
to advise Seller within forty-eight hours after being requested by Seller to do
so whether Purchaser elects to (i) accept the Property in its then condition and
accept a reduction in the Purchase Price equal to the cost of repairing such
damage, as certified by an independent contractor selected by the parties or
(ii) have Seller repair the Other Damage. In the event Purchaser fails to
respond in a timely manner, than Seller may select either alternative for
Purchaser and promptly notify Purchaser of same. In the event of Other Damage
where Seller is required to or elects to repair such damage as provided herein,
the Closing Date shall be delayed for the number of days required to repair the
damage.
(B) If, between the end of the Review Period and the Closing, there has been a
material detrimental change in the environmental condition of the Property,
Seller shall elect within seventy-two hours after being notified of same whether
to remediate in full compliance with all applicable laws or not to remediate the
change. If Seller fails to make either election, Seller shall be deemed to have
elected not to remediate. If Seller elects to remediate, the Closing Date shall
be delayed for the number of days required to remediate. If Seller elects, or is
deemed to have elected, not to remediate, Purchaser shall have an additional
seventy-two hours after expiration of the first seventy-two hour period to
determine whether to terminate this Agreement or to proceed to close without
deduction or credit on account of the detrimental change in the environmental
condition of the Property. In the event Purchaser fails to make either election
on or prior to the expiration of the second seventy-two hour period, Purchaser
will be deemed to have elected to terminate this Agreement. In the event this
Agreement is not terminated pursuant to the provisions of this Paragraph 8.2B,
the Closing Date shall be delayed a sufficient number of days to accommodate the
procedures provided for herein.
(C) In the event of termination of this Agreement as provided in this Paragraph,
the Deposit (less $100.00 to be paid to Seller) will be returned to Purchaser,
but Purchaser shall remain liable for the indemnity contained in Paragraph 8.17
hereof.
8.3 Time of Essence. Time (including, without limitation,
the date specified as the Closing Date) is of the essence of this Agreement.
8.4 Notices. All notices required or permitted hereunder
must be in writing and shall be served on the parties at the following address:
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If to Purchaser: IRT Property Company
000 Xxxxxxxx Xxxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000
Attn: W. Xxxxxxxx Xxxxx III
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
with a copy to: Xxxxxxxx & Xxxxxxx, P.C.
2800 Marquis One Tower
000 Xxxxxxxxx Xxxxxx Xxxxxx, X.X.
Xxxxxxx, Xxxxxxx 00000-0000
Attn: Xxxxx X. Xxxx, Esq.
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
If to Seller: RREEF MidAMERICA/East-IV, Inc.
c/o The RREEF Funds
00 Xxxx 00xx Xxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xx. Xxxxx X. Xxxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
with a copy to: X'Xxxxxx & Xxxxxx
00 Xxxxx XxXxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attn: Xxxxxxx X. Xxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Any such notices may be sent by (a) certified mail, return receipt requested, in
which case notice will be deemed delivered five (5) business days after deposit,
postage prepaid in the U.S. mail or (b) a nationally recognized overnight
courier, in which case notice will be deemed delivered one business day after
deposit with such courier or (c) facsimile transmission, in which case notice
will be deemed delivered upon electronic verification that transmission to
recipient was completed or (d) personal delivery. The above addresses and
facsimile numbers may be changed by notice to the other party; provided that no
notice of a change of address or facsimile number will be effective until actual
receipt of such notice.
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8.5 Successors and Assigns. This Agreement is binding upon
and inures to the benefit of the heirs, successors, and assigns of the parties
hereto, provided Purchaser may not assign its rights or obligations hereunder
without the prior written consent of Seller, except to an entity owned or
controlled by Purchaser, an entity which owns or controls Purchaser or an entity
which is under common ownership or control with Purchaser, provided, however,
that such assignee cannot be a party which is a "party-in-interest" as described
in Paragraph 8.16.
8.6 Governing Law. The performance and interpretation of
this Agreement is controlled by the law of the State in which the Property is
located.
8.7 Continuation Until Closing; Leasing.
8.7.1 Between the Effective Date and the Closing,
Seller agrees to keep and perform all of the obligations to be performed by
landlord under any leases or applicable laws. Seller agrees to maintain or cause
the tenants to maintain the Property and personal property in condition at least
as good as at the time of this Agreement and will otherwise operate the Property
in the same manner as before the making of this Agreement, the same as though
Seller were retaining the Property.
8.7.2 Seller agrees not to permit or consent to any new
leases, amendments, extensions, renewals (other than pursuant to tenant renewal
options, if any), subleases or assignments (collectively, the "Lease
Modifications") within three business days prior to the expiration of the Review
Period or thereafter, without first submitting them (together with an
itemization or estimation of the costs to be borne by Purchaser pursuant to the
provisions of Paragraph 8.7.3) to Purchaser for Purchaser's approval, which
approval Purchaser agrees not to unreasonably withhold. Purchaser will have two
(2) business days to notify Seller of its approval of such Lease Modifications,
and in the event that Purchaser does not so notify Seller, the Lease
Modification will be deemed approved. In the event Seller enters into any Lease
Modifications after the Effective Date and before three business days prior to
the expiration of the Review Period, Seller shall notify Purchaser within one
(1) business day thereafter, together with an itemization or estimation of the
costs to be borne by the Purchaser pursuant to the provisions of Paragraph
8.7.3, but Purchaser shall have no approval rights with respect thereto.
8.7.3 With respect to any Lease Modification entered
into by Seller between the Effective Date and Closing, which, if required by the
terms of Paragraph 8.7.2 above, has been approved by Purchaser, if Seller
performs or pays or contracts for any tenant improvement work or additional
landlord work required pursuant to such Lease Modifications, or pays or
contracts for any leasing commissions or grants any free rent period or other
financial concessions, then such expenses and/or free rent or other concessions,
and all other third-party costs incurred (including attorneys' fees) in
connection with such Lease Modifications, will be a credit to Seller at Closing.
Except as provided in the Lease Assignment executed and delivered at Closing
pursuant to the terms of this Agreement, after the Closing Date, Seller will
have no further obligations with respect to any such new leases or other
occupancy agreements entered
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into between the date of this Agreement and the Closing Date, including, without
limitation, tenant improvement work, leasing commissions, and free rent or other
concessions and Purchaser will assume all such obligations.
8.8 Brokers. Seller and Purchaser each (a) represents and
warrants to the other that it has not dealt with any broker or finder in
connection with the transaction contemplated by this Agreement other than the
parties, if any, to be paid a commission as specified in Paragraph 8.11, and (b)
agrees to defend, indemnify and hold the other harmless from and against any
losses, damages, costs, or expenses (including attorneys' fees) incurred by such
other party due to a breach of the foregoing warranty by the indemnifying party.
8.9 Attorneys' Fees. If any action is brought by either
party against the other party, on account of the interpretation or enforcement
of the terms hereof, the party in whose favor final judgment is entered will be
entitled to recover court costs incurred and reasonable attorneys' fees at
trial, upon appeal and on any petition for review.
8.10 Remedies for Non-Performance. If Seller defaults
hereunder and Purchaser has knowledge of such default prior to Closing,
Purchaser may, as its sole and exclusive remedy, either terminate this Agreement
and obtain the return of the Deposit and all interest thereon, or enforce
specific performance of this Agreement. Purchaser's remedies regarding knowing
and intentional breach of warranty or representation by Seller is governed by
Paragraph 5.3. With respect to Seller defaults of which Purchaser first obtains
knowledge after Closing, Purchaser's sole remedy is the damage remedy as
described and limited in Paragraph 5.3. If said sale is not consummated because
of a default under this Agreement on the part of Purchaser, the Deposit will be
paid to and retained by Seller as liquidated damages and as Seller's sole and
exclusive remedy.
8.11 Brokers Commission. Seller shall pay a brokerage
commission to RJS/Xxxxxxx Group pursuant to a separate agreement.
8.12 Survival of Representations and Warranties. Seller's
representations and warranties contained herein and claims, damages or injury
for the breach thereof will survive the Closing for a period of six (6) months.
Purchaser must give Seller notice of any claim it may have against Seller for a
any breach within six (6) months after the date of Closing. Any claim which
Purchaser may have which is not asserted within the six (6) month period will
not be valid or effective and Seller will have no liability with respect
thereto.
8.13 Merger of Prior Agreements. This Agreement constitutes
the entire agreement between the parties with respect to the purchase and sale
of the Property and supersedes all prior agreements and understandings between
the parties hereto relating to the subject matter of this Agreement.
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8.14 Invalidity of Provisions. In the event any provisions of
this Agreement are declared invalid or are unenforceable for any reason, such
provisions shall be deleted from such document and shall not invalidate any
other provision.
8.15 Intentionally Deleted.
8.16 Intentionally Deleted.
8.17 Entry and Indemnity. In connection with any entry by
Purchaser, or its agents, employees or contractors onto the Property, Purchaser
shall give Seller reasonable advance notice of such entry and shall conduct such
entry and any inspections in connection therewith so as to minimize, to the
greatest extent possible, interference with Seller's business and the business
of Seller's tenants and otherwise in a manner reasonably acceptable to Seller.
Without limiting the foregoing, prior to any entry to perform any on-site
testing, Purchaser shall give Seller notice thereof, including the identity of
the company or persons who will perform such testing and the proposed scope of
the testing. Seller shall approve or disapprove the scope and methodology of
such proposed testing within one (1) business day after receipt of such notice
(three (3) business days if such notice proposes invasive or intrusive testing),
such approval to be within the sole and unfettered discretion of Seller;
Seller's failure to notify Purchaser of its approval or disapproval shall be
deemed to be Seller's disapproval thereof. If Purchaser or its agents, employees
or contractors take any sample from the Property in connection with any such
approved testing, upon Seller's request, Purchaser shall provide to Seller a
portion of such sample being tested to allow Seller, if it so chooses, to
perform its own testing. Seller or its representative may be present to observe
any testing or other inspection performed on the Property. Upon Seller's
request, Purchaser shall promptly deliver to Seller copies of any reports
relating to any testing or other inspection of the Property performed by
Purchaser or its agents, employees or contractors. Purchaser shall maintain, and
shall assure that its contractors maintain, public liability and property damage
insurance in amounts and in form and substance adequate to insure against all
liability of Purchaser, its agents, employees or contractors, arising out of any
entry or inspections of the Property pursuant to the provisions hereof, and
Purchaser shall provide Seller with evidence of such insurance coverage upon
request by Seller. Purchaser shall indemnify, defend and hold Seller harmless
from and against any costs, damages, liabilities, losses, expenses, liens or
claims (including, without limitation, reasonable attorney's fees) arising out
of or relating to any entry on the Property by Purchaser, its agents, employees
or contractors in the course of performing the inspections, testings or
inquiries provided for in this Agreement, including without limitation damage to
the Property or release of hazardous substances or materials onto the Property,
excluding, however, any costs incurred by Seller in supervising Purchaser's
testing. The foregoing indemnity shall survive beyond the Closing, or if the
sale is not consummated, beyond the termination of this Agreement. Nothing in
this Paragraph 8.17 shall be construed to limit or impair Purchaser's absolute
right to terminate under Paragraph 3.
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8.18 Release. Purchaser, on behalf of itself and its
successors and assigns, waives its right to recover from, and forever releases
and discharges, Seller, Seller's affiliates, Seller's investment manager, the
partners, trustees, shareholders, directors, officers, employees and agents of
each of them, and their respective heirs, successors, personal representatives
and assigns (collectively, the "Seller Related Parties"), from any and all
demands, claims, legal or administrative proceedings, losses, liabilities,
damages, penalties, fines, liens, judgments, costs or expenses whatsoever
(including, without limitation, attorneys' fees and costs), whether direct or
indirect, actually known to Purchaser as of Closing, which may arise on account
of or in any way be connected with the physical condition of the Property or any
law or regulation applicable thereto, including, without limitation, the
Comprehensive Environmental Response, Compensation and Liability Act of 1980, as
amended (42 U.S.C. Sections 9601 et seq.), the Resources Conservation and
Recovery Act of 1976 (42 U.S.C. Section 6901 et seq.), the Clean Water Act (33
U.S.C. Section 466 et seq.), the Safe Drinking Water Act (14 U.S.C. Sections
1401-1450), the Hazardous Materials Transportation Act (49 U.S.C. Section 1801
et seq.), and the Toxic Substance Control Act (15 U.S.C. Sections 2601-2629)
8.19 Confidential Information. The parties acknowledge that
the transaction described herein is of a confidential nature and shall not be
disclosed except to consultants, investors, advisors, and affiliates, or as
required by law. No party will make any public disclosure of the specific terms
of this Agreement, except as required by law. In connection with the negotiation
of this Agreement and the preparation for the consummation of the transactions
contemplated hereby, each party acknowledges that it will have access to
confidential information relating to the other party. Each party shall treat
such information as confidential, preserve the confidentiality thereof, and not
duplicate or use such information, except to advisors, consultants, investors
and affiliates in connection with the transactions contemplated hereby. In the
event of the termination of this Agreement for any reason whatsoever, Purchaser
will return to Seller, at Seller's request, all documents, work papers, and
other material (including all copies thereof) obtained from Seller in connection
with the transactions contemplated hereby, and each party shall use its best
efforts, including instructing its employees and others who have had access to
such information, to keep confidential and not to use any such information. The
provisions of this Paragraph 8.19 will survive the Closing or, if the purchase
and sale is not consummated, any termination of this Agreement, and will not be
subject to the limitation set forth in Paragraph 8.12.
8.20 Calculation of Time Periods. Unless otherwise specified,
in computing any period of time described herein, the day of the act or event,
after which the designated period of time begins to run, is not to be included
and the last day of the period so computed is to be included, unless such last
day is a Saturday, Sunday or legal holiday, in which event the period shall run
until the end of the next day which is neither a Saturday, Sunday, or legal
holiday (i.e., a day on which federally chartered banks are not open for
business in Chicago, Illinois). The last day of any period of time described
herein shall be deemed to end at 5 p.m. Chicago, Illinois time on the last day
of such period of time. All days other than Saturdays, Sundays and legal
holidays are business days hereunder.
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8.21 Offer. Execution and delivery of this Agreement by
Seller constitutes an offer to sell the Property on the terms contained herein.
The offer will be irrevocable until 6:00 p.m. Chicago time, May ___, 1997 (the
"Expiration Date"). In the event Purchaser has not countersigned and delivered
this Agreement to Seller on or before the Expiration Date, this Agreement will
be null and void without further action of the parties. Delivery by Purchaser of
a copy of the fully executed Agreement by facsimile transmission on or before
the Expiration Date, followed by a manually signed copy thereof delivered the
next business day after transmission of such copy, shall constitute acceptance
by Purchaser as of the date of the facsimile transmission. The date on which
Purchaser delivers a fully executed copy of this Agreement to Seller, or
delivers a copy by facsimile transmission followed by a manually signed copy as
provided in the preceding sentence is referred to herein as the Effective Date.
8.22 Radon Gas. Radon is a naturally occurring radioactive
gas that, when it has accumulated in a building in sufficient quantities, may
present health risks to persons who are exposed to it over time. Levels of radon
that exceed federal and state guidelines have been found in buildings in
Florida. Additional information regarding radon and radon testing may be
obtained from your county public health unit.
8.23 Audit. Seller agrees to provide Purchaser with copies
of, or access to, such factual information in the possession or control of
Seller as may be reasonably requested by Purchaser, within six (6) months
following Closing, to enable Purchaser to file Form 8-K with the Securities and
Exchange Commission. At Purchaser's sole cost and expense not to exceed $8,000
(which Purchaser agrees to pay to Seller at Closing with Seller to account for
any overpayment upon completion of the audit), Seller agrees to cause its
auditors to conduct an audit of the operating statements for the Property for
1996 and to deliver same to Purchaser on or before nine (9) months following
Closing.
8.24 Exculpation Clause. The obligations of Seller contained
herein are intended to be binding only on the Property and the proceeds thereof
and no resort shall be had to
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any other assets of Seller nor to Seller's investment advisor or its assets. All
documents to be executed by Seller shall also contain the foregoing exculpation.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the dates set forth below.
SELLER: PURCHASER:
RREEF MidAMERICA/EAST-IV, INC., IRT PROPERTY COMPANY,
a Delaware corporation, a Georgia corporation
By: /s/Xxxxx X. Xxxxxxxx,Vice President By: /s/W. Xxxxxxxx Xxxxx
----------------------------------- --------------------
Xxxxx X. Xxxxxxxx, Vice-President Title: Executive Vice President
Dated: May 13, 1997 Dated: May 14, 1997
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FIRST AMENDMENT TO AGREEMENT FOR
THE SALE AND PURCHASE OF PROPERTY
THIS FIRST AMENDMENT TO AGREEMENT FOR THE SALE AND PURCHASE OF PROPERTY
("Amendment") is made and entered into as of this 12th day of June, 1997, by and
among RREEF MidAMERICA/EAST - IV, INC., a Delaware corporation ("Seller"); IRT
PROPERTY COMPANY, a Georgia corporation ("Purchaser"); and COMMONWEALTH LAND
TITLE INSURANCE COMPANY, a Pennsylvania corporation ("Escrow Agent").
W I T N E S S E T H:
WHEREAS, Purchaser, Seller and Escrow Agent entered into that certain
Agreement for the Sale and Purchase of Property with an Effective Date of May
14, 1997, (collectively, the "Contract"), pursuant to which Seller agreed to
sell and Purchaser agreed to purchase the Property as more particularly
described therein;
WHEREAS, Purchase and Seller desire to amend the Contract as more
particularly hereinafter set forth.
NOW, THEREFORE, for and in consideration of the Purchase Price, the
mutual covenants and agreements contained herein, the sum of Ten and No/100
($10.00) and good and valuable consideration, the receipt, adequacy and
sufficiency of which are hereby acknowledged by Purchaser, Seller and Escrow
Agent, Purchaser, Seller and Escrow Agent intending to be legally bound agree as
follows:
1. Purchase Price. The first sentence of Section 1 shall be deleted
in its entirety and the following inserted in its place:
The purchase price for the Property shall be Twelve Million Nine
Hundred Fifty Thousand and No/100 Dollars ($12,950,000.00) (the
"Purchase Price"), payable by wire transfer of funds at Closing..
2. Prior to Closing, Seller shall inspect and repair the irrigation
system located on the Property as needed.
3. Prior to Closing, Seller shall repair, apply rust inhibitor and
repaint those exterior doors located at the rear of the tenant spaces of the
Property that are in need of repair. Seller's total aggregate costs of
inspection and repairs for Sections 2 & 3 shall be limited to Five Thousand and
No/100 Dollars ($5,000.00).
4. Reaffirmation. Except as hereinabove modified, the terms and
provisions of the Contract remain in full force and effect, the same being
republished and confirmed hereby.
23
5. Counterpart Execution. This Amendment may be executed in several
counterparts, each of which shall be deemed an original, and with all of such
counterparts together constituting one and the same agreement.
6. Facsimile Signature. The parties hereto agree that this Amendment
may be executed by facsimile signature.
7. Capitalized Terms. The capitalized terms used in this Amendment
shall have the meaning attributed to them in the Contract unless otherwise set
forth herein.
[Signatures contained on following page]
2
24
IN WITNESS WHEREOF, the duly authorized representatives of the
undersigned have executed this Second Amendment under seal the day and year
first above written.
SELLER:
-------
RREEF midAMERICA/EAST - IV, INC., a Delaware limited
partnership
By: /s/Xxxxx X. Xxxxxxxx
------------------------
Name:Xxxxx X. Xxxxxxxx
-----------------------
Title:Vice-President
----------------------
PURCHASER:
----------
IRT PROPERTY COMPANY, a Georgia corporation
By: /s/W. Xxxxxxxx Xxxxx
--------------------------------
Name:W. Xxxxxxxx Xxxxx
-------------------------------
Title:Executive Vice President
------------------------------
ESCROW AGENT:
-------------
COMMONWEALTH LAND TITLE INSURANCE COMPANY,
a Pennsylvania corporation
By: /s/Xxxxx Xxxxxx Tyler
--------------------------------
Name:Xxxxx Xxxxxx Xxxxx
-------------------------------
Title:Assistant Vice President NTS
------------------------------
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SECOND AMENDMENT TO AGREEMENT FOR
THE SALE AND PURCHASE OF PROPERTY
THIS SECOND AMENDMENT TO AGREEMENT FOR THE SALE AND PURCHASE OF
PROPERTY ("Amendment") is made and entered into as of this 19th day of June,
1997, by and among RREEF MidAMERICA/EAST - IV, INC., a Delaware corporation
("Seller"); IRT PROPERTY COMPANY, a Georgia corporation ("Purchaser"); and
COMMONWEALTH LAND TITLE INSURANCE COMPANY, a Pennsylvania corporation ("Escrow
Agent").
W I T N E S S E T H:
WHEREAS, Purchaser, Seller and Escrow Agent entered into that certain
Agreement for the Sale and Purchase of Property with an Effective Date of May
14, 1997, and amended by that certain First Amendment to Agreement for The Sale
and Purchase of Property dated June 12, 1997, (collectively, the "Contract"),
pursuant to which Seller agreed to sell and Purchaser agreed to purchase the
Property as more particularly described therein;
WHEREAS, Purchase and Seller desire to further amend the Contract as
more particularly hereinafter set forth.
NOW, THEREFORE, for and in consideration of the Purchase Price, the
mutual covenants and agreements contained herein, the sum of Ten and No/100
($10.00) and good and valuable consideration, the receipt, adequacy and
sufficiency of which are hereby acknowledged by Purchaser, Seller and Escrow
Agent, Purchaser, Seller and Escrow Agent intending to be legally bound agree as
follows:
1. Audit: Section 8.23 is hereby deleted in its entirety. In its place
will be the following: "Seller agrees to provide Purchaser with copies of, or
access to, such factual information in the possession or control of Seller, as
may be reasonably requested by Purchaser, within fifteen (15) days following
Closing, to enable Purchaser to file a Form 8-K with the Securities and Exchange
Commission. At Purchaser's sole cost and expense not to exceed $8,000.00 (which
Purchaser agrees to pay to Seller either at Closing, or in the event that the
transaction does not Close, Purchaser will assume cost of said audit upon
termination of the Contract), Seller agrees to cause its auditors to conduct an
audit of the operating statements for the Property for 1996 and to deliver same
to Purchaser on or before fifteen (15) days following Closing, provided the
Closing Date is no earlier than June 24, 1997. In the event Seller shall fail to
deliver such audit to Purchaser as required herein, Purchaser's sole remedy
shall be to recover from Seller the amount of loss occasioned thereby, but in no
event to exceed the cost of the audit".
2. Reaffirmation. Except as hereinabove modified, the terms and
provisions of the Contract remain in full force and effect, the same being
republished and confirmed hereby.
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3. Counterpart Execution. This Amendment may be executed in several
counterparts, each of which shall be deemed an original, and with all of such
counterparts together constituting one and the same agreement.
4. Facsimile Signature. The parties hereto agree that this Amendment
may be executed by facsimile signature.
5. Capitalized Terms. The capitalized terms used in this Amendment
shall have the meaning attributed to them in the Contract unless otherwise set
forth herein.
[Signatures contained on following page]
2
27
IN WITNESS WHEREOF, the duly authorized representatives of the
undersigned have executed this Second Amendment under seal the day and year
first above written.
SELLER:
-------
RREEF midAMERICA/EAST - IV, INC., a Delaware limited
partnership
By: /s/Xxxxx X. Xxxxxxxx
--------------------------
Name: Xxxxx X. Xxxxxxxx
------------------------
Title: Vice-President
-----------------------
PURCHASER:
----------
IRT PROPERTY COMPANY, a Georgia corporation
By: /s/W. Xxxxxxxx Xxxxx
----------------------------------
Name: W. Xxxxxxxx Xxxxx
--------------------------------
Title: Executive Vice President
-------------------------------
ESCROW AGENT:
-------------
COMMONWEALTH LAND TITLE INSURANCE COMPANY,
a Pennsylvania corporation
By: /s/Xxxxx Xxxxxx-Xxxxx
----------------------------------
Name: Xxxxx Xxxxxx-Xxxxx
--------------------------------
Title: Assistant Vice President NTS
-------------------------------
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